IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.5262/2015 (GM-CPC) Between:
Smt. Amala @ Asha W/o. Narayanaswamy Aged about 45 years, R/at No.117, 80 feet Road, Katriguppe, BSK III Stage, Bengaluru 560 085.
… Petitioner (By Sri. Nishanth A. V., Advocate) And:
1. Sri. Anil Kumar S/o. Late Ramakrishna Appe Aged about 52 years 2. Sri. Latha W/o. Late R. Arun Kumar Aged about 44 years 3. Kum. Ranvi D/o. Late R. Arun Kumar Aged about 14 years 4. Master Sachin S/o. Late R. Arun Kumar Aged about 10 years Respondent Nos. 3 and 4 are minors. They are represented by their mother and Natural guardian – R2 herein All are residing at Harappenahalli Village Jigani Hobli, Anekal Taluk Bangalore District 562 106.
… Respondents This Writ Petition is filed under Articles 226 & 227 of Constitution of India, praying to set aside the order dated 10.12.2014 passed by the V Additional City Civil Judge at Bengaluru in FDP No.126/2012 vide Annexure-A and restore the petition bearing FDP No.126/2012 filed by the petitioner in the Court of the Principal City Civil and Sessions Jude at Bengaluru vide Annexure-A.
This Writ Petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following:
ORDER The petitioner who is a decree holder and petitioner in F.D.P.No.126/2012 has challenged the order of the trial Court whereby the petition filed under Order 20 Rule 18 read with Section 151 of C.P.C. has been dismissed.
2. The petitioner was the plaintiff in O.S.No.5697/2010 and obtained a decree after trial and the relief of partition of metes and bounds was granted along with further relief of exclusive possession of her share. The petitioner filed F.D.P.No.126/2012 to execute the preliminary decree. The F.D.P. proceedings has detailed the Schedule items, which are part of the preliminary decree as Item Nos.1 to 9.
3. A perusal of the description of properties would indicate that item Nos.1 to 8 are within the jurisdiction of Court at Anekal while, item No.9 would fall within the jurisdiction of the Court at Bengaluru.
4. The Executing Court has dismissed the petition while observing that preliminary decree is not furnished and also that Item Nos.1 to 8 fall within the jurisdiction of Anekal Taluk and in view of Section 39 of C.P.C. which is applicable to F.D.P. proceedings, the petition would not be maintainable before the Court at Bengaluru. Section 39 of C.P.C. provides that the Court which passes a decree may on the application of decreeholder send it to another Court of competent jurisdiction and Section 39(4) of the Act provides that nothing in Section 39 of the Act shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.
5. It is clear from the records that the Court which has the passed decree is the Court of 5th Additional City Civil Judge, Bengaluru City. The decree has been passed by the Court at Bengaluru and is sought to be put in execution in the same Court. It is to be noted that scope of Section 39 of the Act had been considered in the case of SALEM ADVOCATE BAR ASSOCIATION, T.N. v. UNION OF INDIA reported in (2005) 6 SCC 344 wherein at para-24, the Court has opined as follows:-
“24. Section 39 does not authorise the court to execute the decree outside its jurisdiction but it does not dilute the other provisions giving such power on compliance with the conditions stipulated in those provisions. Thus, the provisions, such as, Order 21 Rule 3 or Order 21 Rule 48 which provide differently, would not be affected by Section 39(4) of the Code.”
6. The Apex Court has clearly laid down that Section 39 of the Act would not in any way dilute the provision of Order 21 Rule 3 of C.P.C. On similar lines is the judgment of Apex Court in the case of MOHIT BHARGAVA v. BHARAT BHUSHAN BHARGAVA AND OTHERS reported in (2007) 4 SCC 795, it is clear that under Order 21 Rule 3 of C.P.C. where immovable property forms one estate or tenure situated within the local limits of jurisdiction of two or more courts, any one of such courts may attach and sell the entire estate or tenure.
7. The properties which are subject matter of a claim for partition relates to late K.Appe Reddy. If that were to be so, suit item No.9 is a portion of the estate of deceased K.Appe Reddy.
8. In light of the said position, it can be stated that the execution petition should be maintainable at the Court in Bengaluru as item No.9 falls within the jurisdiction of Bengaluru and hence in the light of Order 21 Rule 3 of CPC the present petition is maintainable at Bengaluru.
9. Taking note that the Judgment and Decree has been passed by the Court at Bengaluru, the finding of the City Civil Judge that the petition is not maintainable in the light of Section 39 of CPC is erroneous. Accordingly, taking note of the legal position as laid down by the Hon’ble Apex Court in the above cited Judgments, the scope of Order 21 Rule 3 of CPC is to be so construed so as to provide discretion on the decree-holder to choose either of the Courts where portion of the estate is situated while seeking partition of the estate. Accordingly, the plaintiff could choose to initiate action where any item of the property of the estate which is the subject matter of the claim of partition is situated. I find no reason as to why such interpretation which confers the discretion at the convenience of the decree-holder is not to be accepted.
10. The learned counsel for the petitioner has filed a memo stating that he would file a certified copy of the preliminary decree before the Court wherein FDP is now ordered to be revised. Taking note of the same, the impugned order is set aside and the proceedings in FDP No.126/2012 stands revived.
Sd/- JUDGE VGR/KSM